Dog Sniff and “Marijuana” Smell Search Cases in Virginia
Since the passage of the Hemp Act by the federal government which legalized the possession of hemp products law enforcement should struggle to prevail on dog sniff cases for probable case searches.
Hemp is defined as a plant which has thc levels less than three percent. Dogs are trained to smell for marijuana an illegal substance now decriminalized in Virginia. Thus, if a dog sniffs and alerts on a vehicle, the dog may be identifying either a now legal substance, hemp, or civil fine (first offense), marijuana.
The officer cannot ask the dog to differentiate from different smells the dog has been trained on. Therefore, it is imperative (very important) that Virginia criminal defense lawyers challenge searches based on a positive dog sniff alert.
The case that is very helpful to criminal defense lawyers is Buhrman v. Commonwealth. In this case, the Supreme Court of Virginia determined that law enforcement cannot search a vehicle on an item that could possibly be used for illegal means, but could also be used for legal means. In that case it was a hand rolled cigarette. Similarly, a dog positively alerting to a possible legal substance hemp should not provide the police the opportunity to search one?s vehicle. This argument applies to officer?s saying they searched a vehicle based on the smell of marijuana. Is the officer trained to differentiate the smell of hemp versus marijuana?
If you have found yourself charged or know of someone who has been charged based on a search by a drug dog or an officer smelling ?marijuana?, there are good viable arguments at this time to challenge these searches. When successful on challenging these searches, the fruit of the searches (items seized by police) should be excluded from evidence and generally, the case will be dismissed. It is worth looking into to see if your criminal case falls into this category and possibly prevailing by challenging the search.
Feel free to contact my firm to schedule a consultation.